Off Topic: 2 June 2010

I can't help myself on this one. I have to post it. The entire video is great, the last scene is spectacular.

By my calculation, they achieved 0.0007 miles per gallon. Assuming they can do as well when they shoot for the moon (a dubious assumption), they will need somewhat over 600 million bottles of Coke Zero and around 3.7 billion Mentos.

Original YouTube video here.

The Surprising Case of The Despicable Claude Jones

While making my way around the internet, I noticed a post on Steve Weinberg's blog about efforts to prove that Texas executed an innocent man, specifically Claude Jones.

Now, I've looked into, at least briefly, each of the 450+ Texas executions in the "modern era", and I allowed 60+ of those through my coarse filter for more thorough analysis, but I didn't recall anyone by the name of Claude Jones. So I opened my database, did a quick search, and sure enough: Claude Howard Jones, #239, executed 8 December 2000.

I looked at the score I gave him during my coarse screening. On a scale of 0 to 10, I gave him a zero.

I re-read the summary by the Texas Execution Information Center, and didn't see anything that would cause me to score it other than zero. I was therefore interested to learn how others now intend to prove Claude Jones innocent, though executed. Allow me to first excerpt the case from the Texas Execution Information Center.

In November 1989, Jones entered Zell's liquor store in Point Blank and asked the owner, Allen Hilzendager, to retrieve a bottle for him. As Hilzendager turned to get the bottle, Jones shot him three times with a .357 Magnum revolver. Jones took $900 from the cash register and fled in a getaway vehicle waiting outside. Waiting in the car were Jones' two accomplices, Kerry Daniel Dixon Jr. and Timothy Mark Jordan.

Three days later, the trio robbed a bank in Humble, Texas, obtaining $14,000 in loot. ... About three weeks after the liquor store robbery, Jones was arrested in Florida for bank robbery.

Jones ... had eleven prior convictions in Texas for crimes including murder, armed robbery, assault, and burglary. ... In 1976, he was convicted of murder, robbery, and assault in Kansas and received a life sentence. While in Kansas prison, Jones killed another inmate. He was paroled in 1984.

Kerry Dixon also had a lengthy prior record that included murder and two prison terms.

The evidence at Jones' trial was conclusive. A number of witnesses placed Jones at the scene of the crime, including Leon Goodson, who heard the shots and watched Jones leave the liquor store. A strand of Jones' hair was found at the murder scene. Also, Timothy Jordan testified against his partners in crime.

Jones was convicted of capital murder and received the death sentence. Dixon was convicted of murder and received a 60-year prison term. Jordan received a 10-year prison term.

I should add a little factoid about the murder Claude Jones committed while in Kansas prison. He doused an inmate with lighter fluid and, in the words of his own defense attorney, "torched him."

I'll be shedding no tears for Claude Howard Jones. Now on to the case for his actual innocence.  Here's what I've learned.

No witnesses actually "placed Jones at the scene of the crime." Leaon and Wendy Goodson testified only that they saw a man enter the store who appeared to be like Claude Jones. Given that it was night time, and given they were on the other side of the highway, they could  not be sure. They were sure, however, that the man was of medium height, middle age, had a pot belly, and was wearing a gray sweatshirt.

Witness Terry Hardin testified that he knew Claude Jones, and the description fit him. Hardin also testified that Jones had been wearing a gray sweatshirt that day. Hardin then conceded the description could also describe Danny Dixon, the other man sentenced for the crime.

So much for the eyewitness identification. Still, there was the testimony of Timothy Jordan.

Timothy Jordan testified that Claude Jones confessed to having committed the robbery and having killed the clerk. There are some difficulties with Jordan's testimony, however. First, the .357 revolver used in the killing belonged to Jordan, not Jones. Second, Jordon was paid for his testimony. (That's not what the prosecution calls it, of course.) Because Timothy Jordon helped Texas nail Claude Jones, Jordan had a separate murder charge dropped, and was sentenced to just 10 years for the robbery during which Jordan murdered that other person.

And that's not quite all. Jordan later recanted his testimony. In a 2004 affidavit, he stated that everything he reported at trial about robbery and killing he learned not from Claude Jones, but from Danny Dixon, the so called getaway driver. "I took a deal because I was scared, and I testified as to what they told me to say."

So much for Timothy Jordan's testimony. But still, there was the matching hair.  Except ...

It turns out the hair was a mere 1" segment found near the cash register. The Texas crime lab initially found it so small as to be unsuitable for comparison. They later changed their mind and testified that it microscopically matched Claude Jones, but did not match any of the other 15 people that they knew had been in the store. 

So the case ends up resting entirely on that 1" hair segment. Given that microscopic hair matching is notoriously unreliable, the state is not left with much, other than a successful execution. Someone noticed the tenuous nature of this seemingly unquestionable execution, and decided to conduct mitochondrial DNA testing on the hair sample. The county of San Jacinto refuses to allow testing of the hair, and indeed wants to destroy it. (Sound familiar?)  So law suits follow, terms such as "writ of mandamus" fly hither and yon, and before too long the court may rule on whether the hair must be turned over for testing, or can be destroyed.

I have generated an Actual Innocence Scorecard for Claude Jones. Based on all the information I now have at hand, I score him at 52. If the hair is allowed to be tested, and the hair matches Danny Dixon, as many people suspect it will, then I will incorporate that information into the scorecard, and Claude Jones' Actual Innocence Score will convert to 100. Texas will have been proven to have executed an innocent man.

Suddenly, the death penalty walls are closing in around Rick Perry. He must neuter the commission set up to investigate the case of Cameron Todd Willingham, he must navigate the tricky waters of Henry Watkins Skinner, and he must pray that a 1" hair segment is never tested, or is proven to belong to the possibly-innocent, but certainly dead Claude Jones.

UPDATE:
Be aware that I have updated this story in Update on The Surprising Case of the Despicable Claude Jones.

The Case Of Cory Maye

In Woody Allen's movie Bananas, overthrown government officials were being executed in assembly-line fashion after a perfunctory reading of the charge and the taking of the plea. One example is applicable here.

"You are accused of killing over a thousand innocent civilians. How do you plead?"
"Guilty, but with an explanation."

I hereby adopt that as my plea for being remiss in posting: "Guilty, but with an explanation."

I've been pressing hard to finish the second book in my Skeptical Juror series. This one deals with the trial of Cory Maye. Cory Maye was sentenced to death by a Mississippi jury for the murder of Police Officer Ron Jones. There is no question that Cory Maye shot and killed Ron Jones. Nonetheless, in my fictional deliberation of the actual trial, The Skeptical Juror attempts to convince the other jurors that Cory Maye should be acquitted. 

Think of 12 Angry Men with Henry Fonda replaced by a geeky database designer / blogger, and a real person's life on the line. Sound exciting? You betcha!

The story was brought to public attention in 2005 by the writing of Radley Balko (aka The Agitator). So compelling were the story and Radley's writing that the law firm of Convington and Burling volunteered to represent Cory Maye pro bono for his appeal.

You can come up to speed by reading Radley's Balko's article or by watching an award winning documentary. The clip below is a trailer for the longer documentary at the link just passed.

If you read the article or watch the documentary, you will come away wondering: "How can this happen?" In late June, when The Skeptical Juror and the Trial of Cory Maye appears in Kindle format, or in mid July when it appears in print format, you will be able to understand how such things happen, and happen all too often.

A Cosmic Moment Update

You may remember me writing about Judge Kevin Fine in Now For Another Cosmic Moment.  He is the ex-drug-abusing, heavily-tattooed Houston jurist who will decide if the death penalty is Constitutional, at least in the case of Texas v. John Edward Green. He was scheduled to hear arguments from the attorneys beginning on 27 April 2010.

That date has clearly come and gone, and yet no cosmic event. I place the blame for that clearly on Texas. Patricia Lykos, District Attorney of Harris County (Houston and environs), asked Judge Fine to recuse himself since (among other charges) he was presuming the defendant to be innocent. Judge Fine declined, Lykos appealed to a higher court, and Rick Perry prayed to a higher being.

The recusal challenge was heard by State District Judge L.J. Gist. Judge Gist who may or may not be hiding tattoos under his black robe, and he may or may not be concealing a checkered past. Whatever the case, he ruled that Judge Fine need not be recused. “It is the finding of this court that the totality of evidence does not support the state's motion to recuse Judge Fine nor that his impartiality might be reasonably questioned." 

That means the cosmic moment will be rescheduled. Not only that, Judge Gist agrees with me that the delay is the fault of Texas: "the totality of the evidence does not support the state's motion."

Keep checking in here for the new date.

Congratulations, Lynn Switzer

Lynn Switzer has issued a response to the Supreme Court decision to grant certiorari review to Hank Skinner. In a letter sent to ConnectAmarillo.com, she explains why she is intent to see Hank Skinner executed.

I have previously criticized Rick Perry for standing mute. (I believe, in fact, I may have called him a coward.) I now congratulate Lynn Switzer for stating her position clearly and publicly.

You can read her entire letter at the link provided above, or (better yet) you can remain here and read the entire letter below. I will allow Ms. Switzer to make her case without interruption. In the coming days, we will discuss the issues she raises.

Today the United States Supreme Court granted certiorari review in Skinner v. Switzer, No. 09-9000.

In January 2010, the United States District Court dismissed Mr. Skinner's civil rights lawsuit, and the Fifth Circuit Court of Appeals affirmed the decision. Mr. Skinner petitioned the United States Supreme Court seeking further review, and that request was granted by today's order.

Our office responded to Mr. Skinner's civil rights litigation by taking positions strictly in accordance with the controlling law of the State of Texas, and the Fifth Circuit Court of Appeals, and the briefing we filed primarily challenged whether the District Court had jurisdiction to reach Mr. Skinner's complaint.

There have been many inquiries about why Lynn Switzer has opposed Mr. Skinner's request for post-trial DNA testing. It is important for the citizens of Gray County to view that request in light of the procedural background of this case. 

Mr. Skinner was convicted and sentenced to death in March 1995 for having killed Twila Busby and her two adult, mentally-challenged sons Randy Busby and Elwin "Scooter" Caler, shortly before midnight on New Year's Eve of 1993. Before the trial, former Gray County District Attorney John Mann obtained DNA testing and those results were admitted against Mr. Skinner during trial. DNA testing of two of the blood stains on Mr. Skinner's shirt were consistent with Twila Busby's DNA, while a third blood stain was consistent with Mr. Skinner's DNA. DNA testing of blood stains on Mr. Skinner's jeans showed a mixture of blood from Twila and her son Elwin, and two other blood stains were consistent with Elwin's DNA. A forensic scientist testified at trial that 1 in 5.5 billion people (at the time, the population of the earth) would have the same seven DNA probes identified in the blood stains as belonging to Twila, Elwin, and Mr. Skinner. In 2000, former District Attorney John Mann again submitted several items of evidence for DNA testing. The results of some of the items were inconclusive. The testing on the hair found in the right hand of Twila showed a profile that was consistent with both Twila and Mr. Skinner. All evidence was available for forensic testing prior to trial had Mr. Skinner's attorneys Harold Comer and Kenneth Fields chosen to do so. They made a strategy decision to not have it done.

Years later on appeal, as he sat on death row, Mr. Skinner argued that his attorneys were ineffective for failing to pursue DNA testing.

In November 2005, lead defense trial counsel Harold Comer testified during a federal evidentiary hearing and explained the trial strategy, which included (1) that the defense hired a DNA expert who evaluated the State's evidence and found no basis for challenging the results; (2) that certain DNA test results, such as for the blood stains on Mr. Skinner's clothing, had been damaging to the defense's case and counsel did not want to run the danger of uncovering even more damaging evidence; (3) that the defense's blood spatter expert determined that widespread amounts of blood stains on the clothing Mr. Skinner was wearing when he was arrested a few hours after the murders were inconsistent with Mr. Skinner's story that he had lain comatose on the sofa only a few feet away from where Twila was beaten and strangled to death; and (4) that Mr. Skinner's videotaped statement to police about how he and Twila had fought with a stick (which police found imbedded with blood and hair, and laying near Twila's body) was also inconsistent with Mr. Skinner's alibi.

The United States District Court held that Mr. Skinner was represented at trial by competent counsel who made a reasoned strategic decision to not seek DNA testing, and denied relief on this ineffective assistance of counsel claim. The Fifth Circuit found that reasonable jurists would not debate the decision, and the United States Supreme Court denied review.

 Additionally, Mr. Skinner filed two motions with the trial court (in 2001 and 2007) seeking post-conviction DNA testing. Both times, the trial court and the Court of Criminal Appeals found that Mr. Skinner was unable to show that there was a reasonable chance that additional testing could exonerate him, and therefore denied the motions. In both instances, Mr. Skinner failed to ask the Supreme Court for certiorari review.

Nearly 15 years after trial, Mr. Skinner tried another tactic -- arguing for the first time that current Gray County District Attorney Lynn Switzer is violating his civil rights by not allowing him to conduct additional DNA testing. Although nothing prevented Mr. Skinner from filing a civil rights lawsuit earlier, he did not initiate this attack until after the trial court ordered his execution for February 2010.

ConnectAmarillo.com followed the Switzer letter with a direct quote from her.

"As District Attorney for the citizens of Gray County, I give great weight to the wishes of the victims' families, and particularly in this case, to the family of Twila Busby and her sons, Elwin and Randy. I have been in communication with the immediate family of these victims and my position regarding the DNA evidence controversy is fully supported. There have been so many questions, speculations, allegations and outright misrepresentations in this case that it has been difficult to stand silent until the civil suit was resolved. I made the decision to defend against this suit with an eye not only on Mr. Skinner's case but on past and future cases as well. I knew that there were ramifications for District Attorney's all across the state, especially where the defendant waits so long before even filing a civil rights lawsuit. I felt that it was important to stand firm, something that is not always easy to do. If defendants are allowed to "game the system" then we will never be able to rely on the finality of the judgments entered in their cases. I know that it has been hard on the family and friends of Twila, Randy and Elwin and I appreciate their feelings of frustration and hurt.

"Skinner had a full and fair trial before a Gray County jury. He elected not to have more evidence tested for DNA, which was his trial strategy. He was convicted. His case has dragged on for years. The fact that the Supreme Court has granted Skinner's request for a final review of this matter provides an excellent opportunity for the Court to affirm that once a convicted state prisoner has had an adequate opportunity to make a due process challenge to his conviction through a habeas corpus proceeding, other post-conviction proceedings are better left to the states to handle. The Texas procedure for obtaining this evidence is ample and reasonable, and Mr. Skinner has been given plenty of opportunity to show that additional testing could prove his innocence, but he could not show that. We look forward to presenting the case to the Court."